What else you need to know

Practice context and legislation

If the court is considering placing a young person on a custodial or non-custodial supervision order under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ('the Act'), the court must adjourn the hearing and request that the department prepare, or arrange preparation of, a s.38ZR report and a s.47 Certificate of Available Services.

The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 creates a role for the Secretary of the Department of Health and Human Services ('the department') in relation to services available to a child with a mental impairment if a court is considering:

detention on remand

imposing a non-custodial supervision order

imposing a custodial supervision order.

A custodial supervision order is served in a youth justice centre.

Mental impairment can occur by way of:

mental illness

disability

mental illness and disability

A court must determine unfitness to stand trial. If the question of fitness to be tried arises, the matter is adjourned and the young person is released to the community, or remanded to a youth justice centre, whilst fitness to be tried is investigated.

Any decision to remand a young person, where there is a question of fitness, requires the court to request the preparation of a concise Certificate of Available Services under s.47 of the Act. The certificate must indicate if there is a remand bed available for the young person

The investigation into fitness is arranged by the court.

Upon completion of the investigation, the young person may be found to be:

Fit to be tried

Unfit to be tried, but may become fit within six months

Unfit to be tried, and unlikely to become fit within six months.

If the young person is found unfit to be tried, and unlikely to become fit within six months the court may:

consider the young person liable to supervision

discharge the young person

release the young person unconditionally.

If the young person is considered liable for supervision, the court may place them on:

a custodial supervision order, requiring the young person to be detained in a youth justice centre, or

a non-custodial supervision order requiring the young person to be released subject to conditions decided by the court.

Prior to issuing these orders, the court must adjourn the hearing and request that the department prepare, or arrange preparation of a s.47 Certificate of Available Services and a s.38ZR report.

While the reports are being prepared the court may remand the young person in custody or grant bail until the date of the supervision order hearing. Any decision to remand a young person requires the court to request the preparation of a concise Certificate of Available Services under s.47 of the Act.

Section 47 of the Act:

requires the certificate to state whether or not there are facilities or services available to the person and if there are, provide a description of those facilities or services.

states that the certificate may contain other options considered appropriate by the Secretary if no facilities or services are available.

requires the Secretary to provide the certificate to the court within seven days after receiving the request unless a longer timeframe has been advised by the court.

states that the court may require the Secretary to give evidence or to provide a further certificate to clarify or expand on matters dealt with in the initial certificate.

Ss.5 and 6(1) of the Disability Act 2006 outlines the principles the department must apply when providing services to a person with a disability.

Depending on the assessed needs of the child as advised by the investigation, the certificate may be prepared, or arranged to be prepared, by the Mental Health branch and/or Disability Client Services, Youth Justice, or Child Protection.

Youth justice court advice service worker

Identify cases where fitness to plead and mental impairment may be relevant to court proceedings

Advise the court of the requirement to request a Certificate of Available Services if the court is considering remand or a supervision order for a young person where mental impairment and fitness to plead is a relevant issue.

If the court is considering remand for a young person where mental impairment and fitness to plead is a relevant issue, consult with the General Manager of the Parkville Youth Justice Precinct to determine whether there is a bed available for the young person at the precinct.

Prepare the concise section 47 Certificate of Available Services if the court is considering remand for a young person

Liaise with case manager where fitness to plead and mental impairment is relevant for a current youth justice client

Youth Justice Senior Practice Advisor

This should occur subject to local area agreements between Assistant Director / Manager Individual and Family Support and the Youth Justice Senior Practice Adviser.

General Manager, Parkville Youth Justice Precinct

Where the court is considering placing the young person on a custodial supervision order, provide consultation to the Assistant Director / Manager Individual and Family Support, and indicate if a bed is available to the young person.

Certificate of Available Services when the court is considering remand

At any time that the court is considering remanding a young person and their fitness to be tried is in question,, the court must request that the Secretary of the department prepare a Certificate of Available Services, under s.47 of the Act.

Where the court is considering remand, the court will require the s.47 certificate on the same day. In these circumstances, the Youth Justice Court Advice Service worker will provide a concise version of the certificate.

Due to the requirements for the certificate to be available on the same day, the steps involved in developing a s.47 certificate will commence as soon as a request from the court has been received.

Generally, the Youth Justice Court Advice Service worker must prepare the certificate in consultation with the General Manager of the Parkville Youth Justice Precinct. The certificate should indicate whether a remand bed is available for the child should the court place them on a remand order.

The General Manager of the Parkville Youth Justice Precinct must liaise with the Director of Secure Services, the delegate for authorising the certificate.

If a community based alternative is assessed as appropriate by the Youth Justice Court Advice Service worker, verbal advice can be provided to the court, indicating the availability of these services. A supervised bail option may be appropriate at this time. If services will be provided to address specific needs of the young person whilst they are in remand, these can also be described in verbal advice to the court.

The legislative requirement that a remand order does not exceed 21 days applies for any child or young person.

Certificate of Available Services when the court is considering a supervision order

The purpose of the Certificate of Available Services is to provide a brief outline of the services that will be available to the young person, should the court impose a supervision order.

The court must request the Secretary of the department provide, or arrange preparation of, a Certificate of Available Services, under s.47 of the Act, when considering imposing a custodial or non-custodial supervision order on a child, committing the child to a youth justice centre or to receive services in the community.

Determining responsibility for preparing the certificate where the court is considering a supervision order

The steps involved in developing the certificate will commence as soon as the department receives a request from the court.

The court will send requests for the s.38ZR report and certificate to the Legal Services Branch of the department.

The request and associated documentation from the court should assist to determine whether the young person has been assessed as having a mental illness and/or disability.

The Legal Services Branch will allocate responsibility for the certificate and s.38ZR report, to the appropriate departmental area and personnel, based on the nature of services required by the young person, and in consultation with the Assistant Director/Manager Individual and Family Support, Youth Justice and Disability Forensic Unit and the Mental Health Branch of the department.

The certificate may be required in relation to mental illness, disability, or both mental illness and disability.

Preparing and endorsing a certificate relating to mental illness

If the court requests the certificate in relation to mental illness, the preparation of the certificate will be arranged by the Mental Health Branch of the department.

The Legal Services Branch, in consultation with the Mental Health Branch, will send the request to the relevant child and adolescent mental health service or other area mental health service provider.

The child and adolescent mental health service prepares the certificate and the s.38ZR report. The Mental Health Branch then reviews the certificate and report. Departmental endorsement is not required for these reports.

Preparing and endorsing a certificate relating to disability

If the court requests the certificate in relation to disability, the Legal Services Branch, in consultation with the Youth Justice and Disability Forensic Unit, will send the request to the Assistant Director / Manager Individual and Family Support of the relevant departmental area.

Based on current or previous involvement with the Department, the Assistant Director / Manager Individual and Family Support will determine which program (Disability Client Services, Youth Justice or Child Protection) is to take the lead in the preparation of the s38ZR report and certificate, in consultation with relevant programs as required.

Where the subject of the certificate is currently involved with Child Protection, the Assistant Director / Manager, Individual and Family Support must consult with the relevant Area Manager of Child Protection.

The area lead program is responsible for preparing the certificate and the s.38ZR report. The author must take into account the Children’s Court Clinic report provided at the time of the fitness investigation, any previous s.47 certificates, and any other clinical reports considered by the court.

The authority for endorsing the certificate is delegated to the Deputy Secretary of the departmental division preparing the certificate.

Preparing and endorsing a certificate relating to mental illness and disability

If the court requests the certificate and s.38ZR in relation to both disability and mental illness, the Legal Services Branch, in consultation with the Mental Health Branch and the Youth Justice and Disability Forensic Unit, will send the request to the relevant child and adolescent mental health service and the Assistant Director / Manager Individual and Family Support of the relevant departmental area.

Based on current or previous involvement with the department, the Assistant Director / Manager Individual and Family Support will determine which departmental program (Disability Client Services, Youth Justice or Child Protection) is to take the lead in the preparation of the certificate and the s38ZR report, negotiating with relevant programs as required.

Where the subject of the certificate is currently involved with Child Protection, the Assistant Director / Manager, Individual and Family Support must consult with the relevant Area Manager of Child Protection.

Only one certificate should be submitted by the Secretary to the Court, to address both mental health and disability.

The area lead program is responsible for compiling the certificate relating to mental illness and disability. The area lead program, the Mental Health Branch and the child and adolescent mental health service, should collaborate on developing the service response, however responsibility for preparing and submitting the certificate to the court, lies with the area lead program (Disability Client Services, Youth Justice or Child Protection).

The child and adolescent mental health service prepares a certificate and s38ZR report regarding mental illness, and this will inform the certificate and report prepared by the area lead program. The Legal Services Branch will provide the area lead program with a copy of the certificate and report prepared by the child and adolescent mental health service.

The certificate prepared by the area lead program must incorporate information included in the certificate prepared by the child and adolescent mental health service. The area lead program should include the certificate prepared by the child and adolescent mental health service as an attachment to the certificate to be submitted to the Court and, where relevant, make references to the child and adolescent mental health service response, in the Outline of Available Facilities and Services section of the certificate.

A request should be made to the Children’s Court to release any relevant reports to the department to assist with the preparation of the certificate and the s.38ZR report. The authors must read the Children’s Court Clinic report provided at the time of the fitness investigation, and any other clinical reports considered by the court.

The authority for endorsing the certificate is delegated to the Deputy Secretary of the departmental division preparing the certificate.

Preparing and endorsing a certificate where the court is considering a custodial supervision order

Where a custodial supervision order is being considered, consultation with Secure Services must occur.

Consistent with the procedure for preparing a 'concise Certificate of Available Services' where the Court is considering remand, this consultation should occur between the lead program preparing the reports, and the General Manager of the Parkville Youth Justice Precinct. This consultation should provide the General Manager of the precinct with sufficient information to determine whether there is a bed available for the young person at the precinct.

The lead program, is responsible for incorporating this information into the Certificate of Available Services, as well as indicating any additional services to be provided to the young person.

Considerations for eligibility

The department should only make assertions regarding a child or young person's mental illness or disability, after consideration of a report prepared by a psychiatrist, arranged by the Mental Health Branch, or through consideration of an assessment conducted by the Children's Court Clinic or other registered medical practitioner.

The outcome of the target group assessment/s must be accurately reflected in the certificate.

The author of the certificate should consult with the family of the child or young person throughout the process of preparing the certificate, and adopt a family centered approach to accommodation options, services and supports where possible.

If the person is not eligible for services or there are no available services, an explanation for this finding should be provided and alternative recommendations made.

If it is considered that a custodial supervision order is unsuitable, ensure that alternate community based options that meet the child’s needs are recommended.

Finalising the certificate

The certificate and s.38ZR report must be provided to the court as soon as possible after receiving the request. The certificate and s.38ZR report must both contain information regarding services that are available to the young person, and must be consistent. Both documents should be submitted to the court at the same time. Section 47 specifies that the certificate must be provided within 7 days, however this may not be possible, and it may be necessary to negotiate with the court for a longer timeframe.

Drafts of all s.38ZR reports and certificates must be sent to the Legal Services Branch for review and comment. Staff should endeavour to send reports to the Legal Services Branch, at least 8 days before the supervision order hearing, by email to cmia.reports@dhhs.vic.gov.au (External link), with the subject line clearly stating: 'Draft CMIA s.47 Certificate of Available Services regarding Mental Health/Disability/Mental Health and Disability' (choose one).

If a child and adolescent mental health service, or other area based mental health service, has prepared a certificate and s.38ZR report, the Legal Services Branch will forward the report and certificate to the Mental Health Branch of the department for review and reference. In cases of both mental illness and disability, the Legal Services Branch will also forward the certificate to the author of the area lead program’s certificate. This information will inform the report prepared by the area lead program, and be included as an attachment to the area lead program's report.

When feedback is received from the Legal Services Branch, any suggested amendments are to be made by the area lead program, and the documents can then be finalised and signed by the author of the report, as well as the Secretary's delegate.

The area lead program then scans a copy of the signed certificate and s.38ZR report onto the young person’s CRIS file.

The area lead program must file the original signed certificate and s.38ZR report with the requesting court at least three working days before the supervision order hearing. All reports should be addressed to the Registrar of the court, using the 'CMIA court report cover sheet' template.

Preparing the Certificate by the due date

Preparation of the certificate for the court within seven days of receiving the request is a statutory requirement under the Act, unless the court indicates a longer timeframe. The certificate is requested by the court to assist them in making appropriate orders for children or young people with a disability or mental illness.

If preparation of the certificate and report is expected to take longer to prepare than the legislated or negotiated timeframes, contact must be made with the Children’s Court prior to the due date. Contact should be made in writing stating the reason for the delay, requesting an extension and be signed off by the appropriate appointed signatory as indicated in authorisation section of this instruction. The Legal Services Branch must be consulted in these instances.

Attending court

It is the expectation of the court that the department be represented at the Supervision Order hearing where the certificate and s.38ZR report will be considered.

Department areas will determine the most suitable department representative/s to attend the hearing, which may include the Secretary's delegate responsible for authorising the reports, the author of the reports, other managers, team leader or allocated worker.

The Secretary’s delegate (the Deputy Secretary for the relevant division), must be satisfied that the department representative/s is well-placed to give evidence on behalf of the department about any matters raised in the certificate and s.38ZR report, as well as issues about the scope of services available from the department.

CRIS - Certificate of Available Services - remand

Where the template is not incorporated in CRIS, the area lead program responsible for preparing the certificate must use the MS Word template to prepare this document.

The following guidelines relate to generating the Certificate in CRIS for youth justice staff only.

The following process should be followed in CRIS when the matter is stood down for the certificate to be prepared:

Navigate to the Court Appearances tab

Select “Create Court/Tribunal Appearance

Enter the date of the hearing

Select 'Mention' as the Hearing Type

Enter other available information as normal

Navigate to the Notes and Documents tab within the court appearance, and enter a case note indicating the request for the s.47 certificate

To prepare the certificate, the following process should be followed in CRIS:

Navigate to the Court Appearances tab

Open the Mention court appearance for which the report is being prepared

Navigate to the Notes and Documents tab within the court appearance

Create a Document with Component: Court appearance and click Go

Select the document with Document name: 's.47 certificate of Available Services (concise)'

Enter information into all fields on report, generate and obtain endorsement of report, as per usual processes.

CRIS - Certificate of Available Services - supervision order

The following process should be followed in CRIS when the matter is adjourned for the certificate to be prepared:

Navigate to the Court Appearances tab

Select 'Create Court/Tribunal Appearance'

Enter the date of the hearing

Select 'CMIA Special Hearing' as the Hearing Type

Select 'CMIA Adjournment' as the Court/Tribunal Outcome.

Enter the date the matter is adjourned to (the Supervision order hearing date) as the Return/review Date is the date

Enter all other information as normal

Navigate to the Notes and Documents tab within the court appearance, and enter a case notes indicating the request for the s.47 certificate of available services in the subject field

Before commencing the s.47 certificate, the Court appearance for the supervision order hearing must be created.

Navigate to the Court Appearances tab

Select 'Create Court/Tribunal Appearance'

Enter the date of the hearing for which the report has been requested

Select 'CMIA Supervision Order Hearing' as the Hearing Type

Enter the offence details under Charges.

Do not enter any other details until the matter has proceeded.

When preparing the certificate, the following process should be followed in CRIS:

Navigate to the Court Appearances tab

Open the CMIA Supervision Order Hearing court appearance for which the report is being prepared

Navigate to the Notes and Documents tab within the court appearance

Create a Document with Component: Court appearance and click Go

Select the document with Document name: 's.47 certificate of available services'

Enter information into all fields on report, generate and obtain endorsement of report, as per usual processes.